Know your rights: Tips for workers navigating pandemic new normal

CHAPEL HILL – As more states reopen for business, there is a complex web of labor and employments issues brought on by the COVID-19 pandemic.

Earlier this week, a panel of experts convened by UNC Kenan-Flagler Business School and its affiliated Kenan Institute of Private Enterprise convened to discuss the challenges to both employees and employers.

Among them: employers’ options if employees refuse to return to work, workers’ rights to protest unsafe working conditions, privacy issues surrounding workplace health monitoring and data collection, and new federal pandemic benefits.

WRAL TechWire’s Chantal Allam had the chance to catch up with UNC-Chapel Hill School of Law Professor Jeffrey Hirsch, who appeared as one of the panelists. Here’s what he had to say, and some tips for workers navigating the economic restart:

Talk us through some of the “complex and confusing” web of labor and employment issues brought on by COVID-19.

COVID-19 has highlighted the fragmented nature of American labor and employment law. For instance, North Carolina employers trying to operate during the COVID-19 pandemic need to worry about a variety of federal and state statutes and regulations covering issues such as: workplace safety, which involves OSHA, CDC, and the NC Department of Labor; Unemployment Insurance, which is operated by the states pursuant to federal guidelines and several new federal COVID-related statutes; NC workers’ compensation; NC caselaw on employers’ right to terminate workers; federal disability law (ADA); federal family and medical leave laws, including the pre-existing FMLA and new COVID-related leave; federal labor law; and others.

What are employers’ options if employees refuse to work?

Employers are typically able to terminate employees for virtually any reason, but there are limits. For instance, employers cannot retaliate against employees for reporting problems to OSHA, because they took federally mandated leave, or for acting together to try to improve their work conditions. Also, if an employee has a disability, employers covered by the ADA need to be careful not to fire or punish a worker because of that disability or because they refused to reasonably accommodate the disability. Employers should also be aware that even if they can lawfully terminate an employee, the employee may still be eligible for unemployment benefits.

What are workers’ rights to protest unsafe working conditions?

Under federal labor law, employees have the right to act collectively to protest working conditions, including by engaging in a work stoppage (strike). But an individual employee acting on their own is not covered by federal labor law. Employees can also report safety and health problems to OSHA or the NC Department of Labor.

What are workers’ rights when it comes to working from home, and any additional costs associated?

Unless they have a disability, workers typically do not have a right to work from home if the employer objects. Under federal law, the party that bears the burden of additional costs associated with working from home is usually up to the employer and employee to figure out, although there may be instances when required equipment needs to be provided by the employer, such as PPP required by OSHA. Although I’m not sure how much, if at all, that would come up at home.

Talk us through some of the privacy issues surrounding workplace health monitoring and data collection, and what employees can do to protect themselves.

Employees don’t have much privacy protection under federal or state law. For most employers, the ADA provides the most protection by limiting the types of medical questions that can be asked and requiring that such information be kept confidential. For instance, an employer can require employees to take a COVID test, but must keep identifying information private.

What are some new federal pandemic benefits that people should be looking out for?

The federal government has enacted measures that both grant additional unemployment insurance ($600/week) and extend the number of weeks that qualified individuals are entitled to receive unemployment benefits. Moreover, workers who wouldn’t ordinarily qualify for state unemployment benefits may be entitled to new federal benefits if they lose their job as a direct result of COVID-19.

Importantly, NC now provides some benefits for employees who remained employed, but have their hours cut, which can be a good option for business wanting to keep employees on the books despite facing a loss of revenue. (this website has information on unemployment benefits: https://des.nc.gov/need-help/covid-19-information/covid-19-information-individuals/pandemic-unemployment-assistance ).

In addition, the federal Families First Coronavirus Response Act provides extra unpaid leave and new paid leave in certain circumstance related to COVID. This website has information on who is qualified and what the benefits are.

What are some other tips for businesses and workers to navigate the restart?

This is a period of great uncertainty for both businesses and workers. Businesses should do their best to ensure that they are providing a safe environment for their workers and customers (the CDC industry-specific guidelines are a good resource: https://www.cdc.gov/coronavirus/2019-ncov/community/guidance-business-response.html ).

They should also keep up-to-date with the new unemployment, leave, and other COVID-related provisions. Employees are in a tough bind. Ideally, they should feel free to express concerns to their employers about working conditions, but that comes at a risk if their employers aren’t open to this type of communication.

If they do face job loss, a cut in hours, or other negative work conditions, they should know that they may be entitled to protection and talk to an attorney, the NC Department of Labor, or other relevant agencies for guidance on their options.